, pub-7478144801409215, DIRECT, f08c47fec0942fa0, pub-7478144801409215, DIRECT, f08c47fec0942fa0


September 9, 2015

While framing charge a magistrate is expected to apply his mind to the facts of the case, keeping in view the essential ingredients of the offence for which the accused is sought to be charged. The obligation to discharge the accused under section 239 arises when the magistrate considers the charge against the accused to be groundless. The real test for determining whether the charge is groundless is to find out that the materials available on record, even if un-rebutted, would not make out any case whatsoever. The word “groundless” means without any basis or foundation. Where there is even a suspicion about commission of offence, the charge cannot be stated as groundless. In the case of B C Upreti & Anr vs State & Anr (2015), it was held that it is well settled that at the stage of framing of the charges, no roving enquiry is to be made nor the pros and cons of the materials could be weighed in detail as it would tantamount to a mini trial and such is not in the scheme of the code. The reason for this is that the prosecution ought to be allowed to bring its evidence at the trial and the case ought not to be shut out at the threshold when there is reasonable material for holding trial.

I will now discuss the ambit of section 239 of Cr.P.C. Section 239 of Cr.P.C reads as follows:-
239. When accused shall be discharged
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

A plain reading of Section 239 Cr.P.C would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561.

Duty of the Magistrate:- Manakshi Bala vs Sudhir Kumar, 1994 SCC (4) 142, it was held that the Magistrate was to proceed in accordance with Sections 239 and 240 of the Code, at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 CrPC and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms ofSection 239 CrPC; conversely, if he finds that there is ground for presuming that the accused has committed an offence triable by him he has to frame a charge in terms of Section 240 CrPC.

How to quash the charges:- If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out as has been done in the instant case the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. See:- 1994 SCC (4) 142, (1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

The Procedure that to be adopted by the Court at the stage of framing charges:- This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.” See: Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561; Sheoraj Singh Ahlawat & Ors vs State Of U.P.& Anr, CRIMINAL APPEAL NO. 1803 OF 2012 (Arising out of S.L.P. (Crl.) No.4649 of 2010).

An application for discharge:- The Hon’ble Supreme Court in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364 observed:
“…While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law…

A similar question in the context of Section 227:- To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where the Hon’ble Supreme Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth- piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

I will now refer to the ratio laid down in the case State Of Karnataka vs L. Muniswamy & Ors, 1977 AIR 1489, 1977 SCR (3) 113, wherein the Hon’ble Supreme Court observed that ‘it would be a sheer waste of public time and money to permit the proceedings to continue against the respondent, when there is no materialon the record on which any tribunal could reasonably convict them for any offence connected with the assault on the complainant’. Therefore, I may conclude this article by saying that when in any warrant case in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking, it is the duty of the Court to discharge the accused.

Tags: , , , ,


  • http://a%20href=#!%20class=url%20rel=ugc%20external%20nofollowcb%20forum/a

    I really appreciate this post. I have been looking all over for this! Thank goodness I found it on Bing. You’ve made my day! Thank you again!

  • http://a%20href=#!%20class=url%20rel=ugc%20external%20nofollowinstrumentals/a

    What’s up Dear, are you truly visiting this web page on a regular basis, if so afterward you will definitely take good knowledge.

  • http://a%20href=#!%20class=url%20rel=ugc%20external%20nofollowQuincy%20Parriott/a

    There are many fascinating time limits in this article however I donít determine if I see all of them center to heart. There is certainly some validity however Let me take hold opinion until I consider it further. Good article , thanks and that we want extra! Put into FeedBurner as properly

  • http://a%20href=#!%20class=url%20rel=ugc%20external%20nofollowMayavan%20Gopinath/a

    Very informative & useful,
    Mayavan Gopinath.

Leave a ReplyCancel reply The Best law website for legal fraternity. Dismiss, pub-7478144801409215, DIRECT, f08c47fec0942fa0